…the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community.” [1]

The recent case of Emra v. Impression Bridal Inc. reminds us that a disability may be hidden, but when brought to the employer’s attention, it should not be ignored.

The applicant, Kujtim Emra, had been working as an accounts receivable manager for just over 2 years when he was terminated following a short period of absenteeism. The applicant had previously been diagnosed with Generalized Anxiety Disorder and Panic Disorder. He alleged that his disability and perceived disability were factors in his termination.

The respondent, Ms. Yvonne Yue, denied that the applicant was terminated due to Human Right Code (“Code”) related grounds, but rather that the applicant had found the job too stressful, and that he had asked to be terminated in order to collect employment insurance.[2]

History

The applicant testified that over the course of his employment, he had no verbal or written disciplines and enjoyed working with the respondent.[3] Up until shortly before his termination, when his absenteeism began to increase, the applicant had not disclosed his disability. It was shortly before his termination that he disclosed to his employer that his absenteeism was attributable to his anxiety.

In addition, he disclosed that he was taking medication and under a doctor’s care for his anxiety. The applicant testified that during the termination meeting between the respondent and himself, he was told that he needed to be at work as he had an important role. Further, the applicant testified that the respondent also used the meeting as an opportunity to criticize his job performance and to suggest that based on her observations, he might be suffering from Attention Deficit Disorder (“ADD”) as well. [4]

Analysis

The Tribunal heard testimony from several witnesses, including past employees of the company. In the absence of corroborating eyewitness testimony, often the matter is decided in part upon the credibility of the parties, and the collection of objective evidence.

The evidence

In spite of the fact that the applicant had disclosed his disability, the respondent did not make any attempt to accommodate the applicant. The applicant’s Psychiatrist testified, and referred to his notes indicating that the applicant had advised him that he had been terminated. In addition, the respondent admitted that she did not know anything about the Human Rights Code and that the company had no policies relating to human rights. Admitted into evidence were also notes taken by the Human Rights Legal Support Centre as the applicant had called for advice immediately after his termination meeting.

Again, the notes suggested that the applicant had not asked to be terminated in order to collect employment benefits, but rather was attempting to keep his job as he had requested advice on how to do so. The notes were consistent with the applicant’s version of the facts. [5]

The decision

The Tribunal stated, “Ms. Yue had no understanding of her obligations as an employer under the Code. When the applicant first disclosed his disability…she did not inquire further about his medical condition and any accommodations he might need. Ms. Yue urged the applicant to try to be at work…which suggests a lack of understanding on her part that his absenteeism was connected to his disability.” [6]

The Tribunal found that the applicant was terminated and that his disability and perceived disability were factors in the termination.

Remedies

The respondents were ordered to pay the applicant $25,000 for injury to dignity, feelings and self-respect, as well as lost wages. In addition, the respondent was ordered to retain a human rights expert to develop new human rights policies, a copy to be distributed to all its employees, as well as human rights training for all of its employees.

Emra v. Impression Bridal Ltd. further underscores the employer’s duty to accommodate to the point of undue hardship, and that discrimination based on actual, or perceived disability constitutes a breach under the Human Rights Code of Ontario.

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Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more